SEXUAL HARASSMENT GUIDANCE: HARASSMENT OF STUDENTS1 BY
SCHOOL EMPLOYEES, OTHER STUDENTS, OR THIRD PARTIES

SUMMARY OF CONTENTS

Introduction
Applicability of Title IX
Liability of a School for Sexual Harassment
Welcomeness
Severe, Persistent, or Pervasive
Notice
Recipient's Response
Prompt and Equitable Grievance Procedures
First Amendment

INTRODUCTION

Under Title IX of the Education Amendments of 1972 (Title IX) and its
implementing regulations, no individual may be discriminated against on the
basis of sex in any education program or activity receiving Federal financial
assistance2. Sexual harassment of students is a form of prohibited
sex discrimination3 under the circumstances described in the
Guidance. The following types of conduct constitute sexual harassment:

Quid Pro Quo Harassment--A school employee4 explicitly or
implicitly conditions a student's participation in an education program or
activity or bases an educational decision on the student's submission to
unwelcome sexual advances, requests for sexual favors, or other verbal,
nonverbal, or physical conduct of a sexual nature5. Quid pro quo
harassment is equally unlawful whether the student resists and suffers the
threatened harm or submits and thus avoids the threatened harm. Hostile
Environment Sexual Harassment--Sexually harassing conduct (which can include
unwelcome sexual advances, requests for sexual favors, and other verbal,
nonverbal, or physical conduct of a sexual nature)6 by an employee,
by another student, or by a third party that is sufficiently severe,
persistent, or pervasive to limit a student's ability to participate in or
benefit from an education program or activity, or to create a hostile or
abusive educational environment7.

Schools are required by the Title IX regulations to have grievance
procedures through which students can complain of alleged sex discrimination,
including sexual harassment8. As outlined in this guidance,
grievance procedures also provide schools with an excellent mechanism to be
used in their efforts to prevent sexual harassment before it occurs.

Finally, if the alleged harassment involves issues of speech or
expression, a school's obligations may be affected by the application of First
Amendment principles.

These and other issues are discussed in more detail in the following
paragraphs.

APPLICABILITY OF TITLE IX

Title IX applies to all public and private educational institutions that
receive Federal funds, including elementary and secondary schools, school
districts, proprietary schools, colleges, and universities. The Guidance uses
the term "schools" to refer to all those institutions. The "education program
or activity" of a school includes all of the school's operations9.
This means that Title IX protects students in connection with all of the
academic, educational, extra-curricular, athletic, and other programs of the
school, whether they take place in the facilities of the school, on a school
bus, at a class or training program sponsored by the school at another
location, or elsewhere.

It is important to recognize that Title IX's prohibition of sexual
harassment does not extend to legitimate nonsexual touching or other nonsexual
conduct. For example, a high school athletic coach hugging a student who made
a goal or a kindergarten teacher's consoling hug for a child with a skinned
knee will not be considered sexual harassment10. Similarly, one
student's demonstration of a sports maneuver or technique requiring contact
with another student will not be considered sexual harassment. However, in
some circumstances, nonsexual conduct may take on sexual connotations and may
rise to the level of sexual harassment. For example, a teacher's repeatedly
hugging and putting his or her arms around students under inappropriate
circumstances could create a hostile environment.

Title IX protects any "person" from sex discrimination; accordingly both
male and female students are protected from sexual harassment engaged in by a
school's employees, other students, or third parties11. Moreover,
Title IX prohibits sexual harassment regardless of the sex of the harasser,
i.e., even if the harasser and the person being harassed are members of the
same sex12. An example would be a campaign of sexually explicit
graffiti directed at a particular girl by other girls13.

Although Title IX does not prohibit discrimination on the basis of sexual
orientation14, sexual harassment directed at gay or lesbian
students may constitute sexual harassment prohibited by Title IX. For
example, if students heckle another student with comments based on the
student's sexual orientation (e.g., "gay students are not welcome at this
table in the cafeteria"), but their actions or language do not involve sexual
conduct, their actions would not be sexual harassment covered by Title IX. On
the other hand, harassing conduct of a sexual nature directed toward gay or
lesbian students (e.g., if a male student or a group of male students target a
lesbian student for physical sexual advances) may create a sexually hostile
environment and, therefore, may be prohibited by Title IX. It should be noted
that some State and local laws may prohibit discrimination on the basis of
sexual orientation. Also, under certain circumstances, courts may permit
redress for harassment on the basis of sexual orientation under other Federal
legal authority15.

It is also important to recognize that gender-based harassment, which may
include acts of verbal, nonverbal, or physical aggression, intimidation, or
hostility based on sex, but not involving conduct of a sexual nature, may be a
form of sex discrimination that violates Title IX if it is sufficiently
severe, persistent, or pervasive and directed at individuals because of their
sex16. For example, the repeated sabotaging of female graduate
students' laboratory experiments by male students in the class could be the
basis of a violation of Title IX. Although a comprehensive discussion of
gender-based harassment is beyond the scope of this Guidance, in assessing all
related circumstances to determine whether a hostile environment exists,
incidents of gender-based harassment combined with incidents of sexual
harassment could create a hostile environment, even if neither the
gender-based harassment alone nor the sexual harassment alone would be
sufficient to do so17.

LIABILITY OF A SCHOOL FOR SEXUAL HARASSMENT

Liability of a School for Sexual Harassment by its Employees

A school's liability for sexual harassment by its employees is determined
by application of agency principles18, i.e., by principles
governing the delegation of authority to or authorization of another person to
act on one's behalf.

Accordingly, a school will always be liable for even one instance of quid
pro quo harassment by a school employee in a position of authority, such as a
teacher or administrator, whether or not it knew, should have known, or
approved of the harassment at issue19. Under agency principles, if
a teacher or other employee uses the authority he or she is given (e.g., to
assign grades) to force a student to submit to sexual demands, the employee
"stands in the shoes" of the school and the school will be responsible for the
use of its authority by the employee or agent20.

A school will also be liable for hostile environment sexual harassment by
its employees21, i.e., for harassment that is sufficiently severe,
persistent, or pervasive to limit a student's ability to participate in or
benefit from the education program or to create a hostile or abusive
educational environment if the employee -- (1) acted with apparent authority
(i.e., because of the school's conduct, the employee reasonably appears
to be acting on behalf of the school, whether or not the employee acted with
authority)22; or (2) was aided in carrying out the sexual
harassment of students by his or her position of authority with the
institution23. For example, a school will be liable if a teacher
abuses his or her delegated authority over a student to create a hostile
environment, such as if the teacher implicitly threatens to fail a student
unless the student responds to his or her sexual advances, even though the
teacher fails to carry out the threat24.

As this example illustrates, in many cases the line between quid pro quo
and hostile environment discrimination will be blurred, and the employee's
conduct may constitute both types of harassment. However, what is important
is that the school is liable for that conduct under application of agency
principles, regardless of whether it is labeled as quid pro quo or hostile
environment harassment.

Whether other employees, such as a janitor or cafeteria worker, are in
positions of authority in relation to students -- or whether it would be
reasonable for the student to believe the employees are, even if the employees
are not (i.e., apparent authority) -- will depend on factors such as the
authority actually given to the employee25 (e.g., in some
elementary schools, a cafeteria worker may have authority to impose
discipline) and the age of the student. For example, in some cases the
younger a student is, the more likely it is that he or she will consider any
adult employee to be in a position of authority.

Even in situations not involving (i) quid pro quo harassment, (ii)
creation of a hostile environment through an employee's apparent authority, or
(iii) creation of a hostile environment in which the employee is aided in
carrying out the sexual harassment by his or her position of authority, a
school will be liable for sexual harassment of its students by its employees
under the same standards applicable to peer and third party hostile
environment sexual harassment, as discussed in the next section. That is, if
the school fails to take immediate and appropriate steps to remedy known
harassment, then the school will be liable under Title IX26. It is
important to emphasize that under this standard of liability the school can
avoid violating Title IX if it takes immediate and appropriate action upon
notice of the harassment.

Liability of a School for Peer or Third Party Harassment27

In contrast to the variety of situations in which a school may be liable
for sexual harassment by its employees, a school will be liable under Title IX
if its students sexually harass other students if (i) a hostile environment
exists in the school's programs or activities, (ii) the school knows or should
have known of the harassment, and (iii) the school fails to take immediate and
appropriate corrective action28. (Each of these factors is
discussed in detail in subsequent sections of the Guidance.) Under these
circumstances, a school's failure to respond to the existence of a hostile
environment within its own programs or activities permits an atmosphere of
sexual discrimination to permeate the educational program and results in
discrimination prohibited by Title IX. Conversely, if, upon notice of hostile
environment harassment, a school takes immediate and appropriate steps to
remedy the hostile environment, the school has avoided violating Title IX.
Thus, Title IX does not make a school responsible for the actions of
harassing students, but rather for its own discrimination in failing to remedy
it once the school has notice.

Sexually harassing conduct of third parties, who are not themselves
employees or students at the school (e.g., a visiting speaker or members of a
visiting athletic club) can also cause a sexually hostile environment in
school programs or activities. For the same reason that a school will be
liable under Title IX for a hostile environment caused by its students, a
school will be liable if third parties sexually harass its students if (i) a
hostile environment exists in the school's programs or activities, (ii) the
school knows or should have known of the harassment, and (iii) the school
fails to take immediate and appropriate corrective action29.
However, the type of appropriate steps the school should take will differ
depending on the level of control the school has over the third party
harasser30. This issue is discussed in "Recipient's Response."

Effect of Grievance Procedures on Liability

Schools are required by the Title IX regulations to adopt and publish
grievance procedures providing for prompt and equitable resolution of sex
discrimination complaints, including complaints of sexual harassment, and to
disseminate a policy against sex discrimination31. (These issues
are discussed in the section on "Prompt and Equitable Grievance Procedures.")
These procedures provide a school with a mechanism for discovering sexual
harassment as early as possible and for effectively correcting problems, as
required by Title IX. By having a strong policy against sex discrimination
and accessible, effective, and fairly applied grievance procedures, a school
is telling its students that it does not tolerate sexual harassment and that
students can report it without fear of adverse consequences.

Accordingly, in the absence of effective policies and grievance
procedures, if the alleged harassment was sufficiently severe, persistent, or
pervasive to create a hostile environment, a school will be in violation of
Title IX because of the existence of a hostile environment, even if the school
was not aware of the harassment and thus failed to remedy it32.
This is because, without a policy and procedure, a student does not know
either of the school's interest in preventing this form of discrimination or
how to report harassment so that it can be remedied. Moreover, under
the agency principles previously discussed, a school's failure to implement
effective policies and procedures against discrimination may create apparent
authority for school employees to harass students33.

OCR Case Resolution

If OCR is asked to investigate or otherwise resolve incidents of sexual
harassment of students, including incidents caused by employees, other
students, or third parties, OCR will consider whether--(1) the school has a
policy prohibiting sex discrimination under Title IX and effective Title IX
grievance procedures34; (2) the school appropriately investigated
or otherwise responded to allegations of sexual harassment; and (3) the school
has taken immediate and appropriate corrective action responsive to quid pro
quo or hostile environment harassment. (Issues related to appropriate
investigative and corrective actions are discussed in detail in the section on
"Recipient's Response.") If the school has taken each of these steps, OCR
will consider the case against the school resolved and take no further action
other than monitoring compliance with any agreement between the school and
OCR. This is true in cases in which the school was in violation of Title
IX, as well as those in which there has been no violation of Title
IX35.

WELCOMENESS

In order to be actionable as harassment, sexual conduct must be
unwelcome. Conduct is unwelcome if the student did not request or invite it
and "regarded the conduct as undesirable or offensive36."
Acquiescence in the conduct or the failure to complain does not always mean
that the conduct was welcome37. For example, a student may decide
not to resist sexual advances of another student or may not file a complaint
out of fear. In addition, a student may not object to a pattern of sexually
demeaning comments directed at him or her by a group of students out of a
concern that objections might cause the harassers to make more comments. The
fact that a student may have accepted the conduct does not mean that he or
she welcomed it38. Also, the fact that a student willingly
participated in conduct on one occasion does not prevent him or her from
indicating that the same conduct has become unwelcome on a subsequent
occasion. On the other hand, if a student actively participates in sexual
banter and discussions and gives no indication that he or she objects, then
the evidence generally will not support a conclusion that the conduct was
unwelcome39.

If younger children are involved, it may be necessary to determine the
degree to which they are able to recognize that certain sexual conduct is
conduct to which they can or should reasonably object and the degree to which
they can articulate an objection. Accordingly, OCR will consider the age of
the student, the nature of the conduct involved, and other relevant factors in
determining whether a student had the capacity to welcome sexual conduct.

Schools should be particularly concerned about the issue of welcomeness
if the harasser is in a position of authority. For instance, because students
may be encouraged to believe that a teacher has absolute authority over the
operation of his or her classroom, a student may not object to a teacher's
sexually harassing comments during class; however, this does not necessarily
mean that the conduct was welcome. Instead, the student may believe that any
objections would be ineffective in stopping the harassment or may fear that by
making objections he or she will be singled out for harassing comments or
other retaliati

on.

In addition, OCR must consider particular issues of welcomeness if the
alleged harassment relates to alleged "consensual" sexual relationships
between a school's adult employees and its students. If elementary students
are involved, welcomeness will not be an issue: OCR will never view sexual
conduct between an adult school employee and an elementary school student as
consensual. In cases involving secondary students, there will be a strong
presumption that sexual conduct between an adult school employee and a student
is not consensual. In cases involving older secondary students, subject to
the presumption40, OCR will consider a number of factors in
determining whether a school employee's sexual advances or other sexual
conduct could be considered welcome41. In addition, OCR will
consider these factors in all cases involving postsecondary students in making
those determinations42. The factors include:

The nature of the conduct and the relationship of the school
employee to the student, including the degree of influence
(which could, at least in part, be affected by the student's
age), authority, or control the employee has over the
student.

Whether the student was legally or practically unable to
consent to the sexual conduct in question. For example, a
student's age could affect his or her ability to do so.
Similarly, certain types of disabilities could affect a
student's ability to do so.

If there is a dispute about whether harassment occurred or whether it was
welcome -- in a case in which it is appropriate to consider whether the
conduct could be welcome -- determinations should be made based on the
totality of the circumstances. The following types of information may be
helpful in resolving the dispute:

Statements by any witnesses to the alleged incident.

Evidence about the relative credibility of the allegedly
harassed student and the alleged harasser. For example, the
level of detail and consistency of each person's account
should be compared in an attempt to determine who is telling
the truth. Another way to assess credibility is to see if
corroborative evidence is lacking where it should logically
exist. However, the absence of witnesses may indicate only
the unwillingness of others to step forward, perhaps due to
fear of the harasser or a desire not to get involved.

Evidence that the alleged harasser has been found to have
harassed others may support the credibility of the student
claiming the harassment; conversely, the student's claim
will be weakened if he or she has been found to have made
false allegations against other individuals.

Evidence of the allegedly harassed student's reaction or
behavior after the alleged harassment. For example, were
there witnesses who saw the student immediately after the
alleged incident who say that the student appeared to be
upset? However, it is important to note that some students
may respond to harassment in ways that do not manifest
themselves right away, but may surface several days or weeks
after the harassment. For example, a student may initially
show no signs of having been harassed, but several weeks
after the harassment, there may be significant changes in
the student's behavior, including difficulty concentrating
on academic work, symptoms of depression, and a desire to
avoid certain individuals and places at school.

Evidence about whether the student claiming harassment filed
a complaint or took other action to protest the conduct soon
after the alleged incident occurred. However, failure to
immediately complain may merely reflect a fear of
retaliation or a fear that the complainant may not be
believed rather than that the alleged harassment did not
occur.

Other contemporaneous evidence. For example, did the
student claiming harassment write about the conduct, and his
or her reaction to it, soon after it occurred (e.g., in a
diary or letter)? Did the student tell others (friends,
parents) about the conduct (and his or her reaction to it)
soon after it occurred?

SEVERE, PERSISTENT, OR PERVASIVE

Hostile environment sexual harassment of a student or students by other
students, employees, or third parties is created if conduct of a sexual nature
is sufficiently severe, persistent, or pervasive to limit a student's ability
to participate in or benefit from the education program or to create a hostile
or abusive educational environment. Thus, conduct that is sufficiently
severe, but not persistent or pervasive, can result in hostile environment
sexual harassment.

In deciding whether conduct is sufficiently severe, persistent, or
pervasive, the conduct should be considered from both a
subjective43 and objective44 perspective. In making
this determination, all relevant circumstances should be
considered45:

The degree to which the conduct affected one or more
students' education. For a hostile environment to exist, the
conduct must have limited the ability of a student to participate
in or benefit from his or her education or altered the conditions
of the student's educational environment46.

.. Many hostile environment cases involve tangible or
obvious injuries47. For example, a student's
grades may go down or the student may be forced to
withdraw from school because of the harassing
behavior48. A student may also suffer
physical injuries and mental or emotional
distress49.

.. However, a hostile environment may exist even if
there is no tangible injury to the
student50. For example, a student may have
been able to keep up his or her grades and continue to
attend school even though it was more difficult for him
or her to do so because of the harassing
behavior51. A student may be able to remain
on a sports team, despite feeling humiliated or angered
by harassment that creates a hostile
environment52. Harassing conduct in these
examples alters the student's educational environment
on the basis of sex.

.. A hostile environment can occur even if the
harassment is not targeted specifically at the
individual complainant53. For example, if a
student or group of students regularly directs sexual
comments toward a particular student, a hostile
environment may be created not only for the targeted
student, but also for others who witness the conduct.
Similarly, if a middle school teacher directs sexual
comments toward a particular student, a hostile
environment may be created for the targeted student and
for the students who witness the conduct.

The type, frequency, and duration of the conduct. In
most cases, a hostile environment will exist if there is a
pattern or practice of harassment or if the harassment is
sustained and nontrivial54. For instance, if a
young woman is taunted by one or more young men about her
breasts or genital area or both, OCR may find that a hostile
environment has been created, particularly if the conduct
has gone on for some time, takes place throughout the
school, or if the taunts are made by a number of students.
The more severe the conduct, the less the need to show a
repetitive series of incidents; this is particularly true if
the harassment is physical. For instance, if the conduct is
more severe, e.g., attempts to grab a female student's
breasts, genital area, or buttocks, it need not be as
persistent or pervasive in order to create a hostile
environment. Indeed, a single or isolated incident of
sexual harassment may, if sufficiently severe, create a
hostile environment55. On the other hand,
conduct that is not severe, persistent, or pervasive will
not create a hostile environment; e.g., a comment by one
student to another student that she has a nice figure.
Indeed, depending on the circumstances, this may not even be
conduct of a sexual nature56. Similarly, because
students date one another, a request for a date or a gift of
flowers, even if unwelcome, would not create a hostile
environment. However, there may be circumstances in which
repeated, unwelcome requests for dates or similar conduct
could create a hostile environment. For example, a person
may request dates in an intimidating or threatening manner.

The identity of and relationship between the alleged
harasser and the subject or subjects of the harassment. A factor
to be considered, especially in cases involving allegations of
sexual harassment of a student by a school employee, is the
identity of and relationship between the alleged harasser and the
subject or subjects of the harassment. For example, due to the
power that a professor or teacher has over a student, sexually
based conduct by that person toward a student is more likely to
create a hostile environment than similar conduct by another
student57 .

The number of individuals involved. Sexual harassment may
be committed by an individual or a group. In some cases, verbal
comments or other conduct from one person might not be sufficient
to create a hostile environment, but could be if done by a group.
Similarly, while harassment can be directed toward an individual
or a group58, the effect of the conduct toward a group
may vary, depending on the type of conduct and the context. For
certain types of conduct, there may be "safety in numbers." For
example, following an individual student and making sexual taunts
to him or her may be very intimidating to that student but, in
certain circumstances, less so to a group of students. On the
other hand, persistent unwelcome sexual conduct still may create
a hostile environment if directed toward a group.

The age and sex of the alleged harasser and the subject or
subjects of the harassment. For example, in the case of younger
students, sexually harassing conduct is more likely to be
intimidating if coming from an older student59.

The size of the school, location of the incidents, and
context in which they occurred. Depending on the circumstances
of a particular case, fewer incidents may have a greater effect
at a small college than at a large university campus. Harassing
conduct occurring on a school bus may be more intimidating than
similar conduct on a school playground because the restricted
area makes it impossible for the students to avoid their
harassers60. Harassing conduct in a personal or
secluded area such as a dormitory room or residence hall can also
have a greater effect (e.g., be seen as more threatening) than
would similar conduct in a more public area. On the other hand,
harassing conduct in a public place may be more humiliating.
Each incident must be judged individually.

Other incidents at the school. A series of instances at
the school, not involving the same students, could -- taken
together -- create a hostile environment, even if each by itself
would not be sufficient61.

Incidents of gender-based, but non-sexual, harassment.
Acts of verbal, nonverbal, or physical aggression, intimidation,
or hostility based on sex, but not involving sexual activity or
language, can be combined with incidents of sexual harassment to
determine if the incidents of sexual harassment are sufficiently
severe, persistent, or pervasive to create a sexually hostile
environment62.

NOTICE

A school will be in violation of Title IX if the school "has
notice" of a sexually hostile environment and fails to take immediate and
appropriate corrective action63. A school has notice if it
actually "knew, or in the exercise of reasonable care, should have known"
about the harassment64. In addition, as long as an agent or
responsible employee of the school received notice65, the school
has notice

.

A school can receive notice in many different ways. A student may have
filed a grievance or complained to a teacher about fellow students sexually
harassing him or her. A student, parent, or other individual may have
contacted other appropriate personnel, such as a principal, campus security,
bus driver, teacher, an affirmative action officer, or staff in the office of
student affairs. An agent or responsible employee of the school may have
witnessed the harassment. The school may receive notice in an indirect
manner, from sources such as a member of the school staff, a member of the
educational or local community, or the media. The school also may have
received notice from flyers about the incident or incidents posted around the
school66.

Constructive notice exists if the school "should have" known about the
harassment -- if the school would have found out about the harassment through
a "reasonably diligent inquiry67." For example, if a school knows
of some incidents of harassment, there may be situations in which it will be
charged with notice of others -- if the known incidents should have triggered
an investigation that would have led to a discovery of the additional
incidents. In other cases, the pervasiveness of the harassment may be enough
to conclude that the school should have known of the hostile environment -- if
the harassment is widespread, openly practiced, or well-known to students and
staff (such as sexual harassment occurring in hallways, graffiti in public
areas, or harassment occurring during recess under a teacher's
supervision)68.

In addition, if a school otherwise has actual or constructive notice of a
hostile environment and fails to take immediate and appropriate corrective
action, a school has violated Title IX even if the student fails to use the
school's existing grievance procedures.

RECIPIENT'S RESPONSE

Once a school has notice of possible sexual harassment of students --
whether carried out by employees, other students, or third parties -- it
should take immediate and appropriate steps to investigate or otherwise
determine what occurred and take steps reasonably calculated to end any
harassment, eliminate a hostile environment if one has been created, and
prevent harassment from occurring again. These steps are the school's
responsibility whether or not the student who was harassed makes a complaint
or otherwise asks the school to take action69. As described in the
next section, in appropriate circumstances the school will also be responsible
for taking steps to remedy the effects of the harassment on the individual
student or students who were harassed. What constitutes a reasonable response
to information about possible sexual harassment will differ depending upon the
circumstances.

Response to Student or Parent Reports of Harassment;
Response to Direct Observation by a Responsible Employee or
Agent of Harassment

If a student or the parent of an elementary or secondary student provides
information or complains about sexual harassment of the student, the school
should initially discuss what actions the student or parent is seeking in
response to the harassment. The school should explain the avenues for
informal and formal action, including a description of the grievance procedure
that is available for sexual harassment complaints and an explanation of how
the procedure works. If a responsible school employee or agent has directly
observed sexual harassment of a student, the school should contact the student
who was harassed (or the parent, depending upon the age of the
student)70, explain that the school is responsible for taking steps
to correct the harassment, and provide the same information described in the
previous sentence.

Regardless of whether the student who was harassed, or his or her parent,
decides to file a formal complaint or otherwise request action on the
student's behalf (including in cases involving direct observation by a
responsible school employee or agent), the school must promptly investigate to
determine what occurred and then take appropriate steps to resolve the
situation. The specific steps in an investigation will vary depending upon
the nature of the allegations, the source of the complaint, the age of the
student or students involved, the size and administrative structure of the
school, and other factors. However, in all cases the inquiry must be prompt,
thorough, and impartial. (Requests by the student who was harassed for
confidentiality or for no action to be taken, responding to notice of
harassment from other sources, and the components of a prompt and equitable
grievance procedure are discussed in subsequent sections of the Guidance.)

It may be appropriate for a school to take interim measures during the
investigation of a complaint. For instance, if a student alleges that he or
she has been sexually assaulted by another student, the school may decide to
immediately place the students in separate classes or in different housing
arrangements on a campus, pending the results of the school's investigation.
Similarly, if the alleged harasser is a teacher, allowing the student to
transfer to a different class may be appropriate. In cases involving
potential criminal conduct, school personnel should determine whether
appropriate law enforcement authorities should be notified. In all cases,
schools should make every effort to prevent public disclosure of the names of
all parties involved, except to the extent necessary to carry out an
investigation.

If a school determines that sexual harassment has occurred, it should
take reasonable, timely, age-appropriate, and effective corrective action,
including steps tailored to the specific situation71. Appropriate
steps should be taken to end the harassment. For example, school personnel
may need to counsel, warn, or take disciplinary action against the harasser,
based on the severity of the harassment or any record of prior incidents or
both72. A series of escalating consequences may be necessary if
the initial steps are ineffective in stopping the harassment73. In
some cases, it may be appropriate to further separate the harassed student and
the harasser, e.g., by changing housing arrangements74 or directing
the harasser to have no further contact with the harassed student. Responsive
measures of this type should be designed to minimize, as much as possible,
the burden on the student who was harassed. If the alleged harasser is not a
student or employee of the recipient, OCR will consider the level of control
the school has over the harasser in determining what response would be
appropriate75.

Steps also should be taken to eliminate any hostile environment that has
been created. For example, if a female student has been subjected to
harassment by a group of other students in a class, the school may need to
deliver special training or other interventions for that class to repair the
educational environment. If the school offers the student the option of
withdrawing from a class in which a hostile environment occurred, the school
should assist the student in making program or schedule changes and ensure
that none of the changes adversely affect the student's academic record.
Other measures may include, if appropriate, directing a harasser to apologize
to the harassed student. If a hostile environment has affected an entire
school or campus, an effective response may need to include dissemination of
information, the issuance of new policy statements, or other steps that are
designed to clearly communicate the message that the school does not tolerate
harassment and will be responsive to any student who reports that conduct.

In some situations, a school may be required to provide other services to
the student who was harassed if necessary to address the effects of the
harassment on that student76. For example, if an instructor gives
a student a low grade because the student failed to respond to his sexual
advances, this constitutes quid pro quo harassment for which the school is
liable under Title IX regardless of whether it knew of the harassment. Thus,
the school may be required to make arrangements for an independent
reassessment of the student's work, if feasible, and change the grade
accordingly; make arrangements for the student to take the course again with a
different instructor; provide tutoring; make tuition adjustments; offer
reimbursement for professional counseling; or take other measures that are
appropriate to the circumstances. As another example, if a school delays
responding or responds inappropriately to information about harassment, such
as a case in which the school ignores complaints by a student that he or
she is being sexually harassed by a classmate, the school will be required to
remedy the effects of the harassment that could have been prevented had the
school responded promptly and appropriately.

Finally, a school should take steps to prevent any further
harassment77 and to prevent any retaliation against the student who
made the complaint (or was the subject of the harassment), against a person
who filed a complaint on behalf of a student, or against those who provided
information as witnesses78. At a minimum, this includes making
sure that the harassed students and their parents know how to report any
subsequent problems and making follow-up inquiries to see if there have been
any new incidents or any retaliation. To prevent recurrences, counseling for
the harasser may be appropriate to ensure that he or she understands what
constitutes harassment and the effects it can have. In addition, depending on
how widespread the harassment was and whether there have been any prior
incidents, the school may need to provide training for the larger school
community to ensure that students, parents, and teachers can recognize
harassment if it recurs and know how to respond79.

Requests by the Harassed Student for Confidentiality

The scope of a reasonable response also may depend upon whether a
student, or parent of a minor student, reporting harassment asks that the
student's name not be disclosed to the harasser or that nothing be done about
the alleged harassment. In all cases a school should discuss confidentiality
standards and concerns with the complainant initially. The school should
inform the student that the request may limit the school's ability to respond.
The school also should tell the student that Title IX prohibits retaliation
and that, if he or she is afraid of reprisals from the alleged harasser, the
school will take steps to try to prevent retaliation and will take strong
responsive actions if retaliation occurs. If the student continues to ask
that his or her name not be revealed, the school should take all reasonable
steps to investigate and respond to the complaint consistent with that request
as long as doing so does not preclude the school from responding effectively
to the harassment and preventing harassment of other students. Thus, for
example, a reasonable response would not require disciplinary action against
an alleged harasser if a student, who was the only student harassed, insists
that his or her name not be revealed, and the alleged harasser could not
respond to the charges of sexual harassment without that information.

At the same time, a school should evaluate the confidentiality request in
the context of its responsibility to provide a safe and nondiscriminatory
environment for all students. The factors a school may consider in this
regard include the seriousness of the alleged harassment, the age of the
student harassed, whether there have been other complaints or reports of
harassment against the alleged harasser, and the rights of the accused
individual to receive information about the accuser and the allegations if a
formal proceeding with sanctions may result80.

Although a student's request to have his or her name withheld may limit
the school's ability to respond fully to an individual complaint of
harassment, other means may be available to address the harassment. There are
steps a recipient can take to limit the effects of the alleged harassment and
prevent its recurrence without initiating formal action against the alleged
harasser or revealing the identity of the complainant. Examples include
conducting sexual harassment training for the school site or academic
department where the problem occurred, taking a student survey concerning any
problems with harassment, or implementing other systemic measures at the site
or department where the alleged harassment has occurred.

In addition, by investigating the complaint to the extent possible --
including by reporting it to the Title IX coordinator or other responsible
school employee designated pursuant to Title IX -- the school may learn about
or be able to confirm a pattern of harassment based on claims by different
students that they were harassed by the same individual. In some situations
there may be prior reports by former students who now might be willing to come
forward and be identified, thus providing a basis for further corrective
action. In instances affecting a number of students (for example, a report
from a student that an instructor has repeatedly made sexually explicit
remarks about his or her personal life in front of an entire class), an
individual can be put on notice of allegations of harassing behavior and
counseled appropriately without revealing, even indirectly, the identity of
the student who notified the school. Those steps can be very effective in
preventing further harassment.

Response to Other Types of Notice

The previous two sections deal with situations in which a student or
parent of a student who was harassed reports or complains of harassment or in
which a responsible school employee or agent directly observes sexual
harassment of a student. If a school learns of harassment through other
means, for example if information about harassment is received from a third
party (such as from a witness to an incident or an anonymous letter or
telephone call), different factors will affect the school's response. These
factors include the source and nature of the information; the seriousness of
the alleged incident; the specificity of the information; the objectivity and
credibility of the source of the report; whether any individuals can be
identified who were subjected to the alleged harassment; and whether those
individuals want to pursue the matter. If, based on these factors, it is
reasonable for the school to investigate and it can confirm the allegations,
the considerations described in the previous sections concerning interim
measures and appropriate responsive action will apply.

For example, if a parent visiting a school observes a student repeatedly
harassing a group of female students and reports this to school officials,
school personnel can speak with the female students to confirm whether that
conduct has occurred and whether they view it as unwelcome. If the school
determines that the conduct created a hostile environment, it can take
reasonable, age-appropriate steps to address the situation. If, on the other
hand, the students in this example were to ask that their names not be
disclosed or indicate that they do not want to pursue the matter, the
considerations described in the previous section related to requests for
confidentiality will shape the school's response.

In a contrasting example, a student newspaper at a large university may
print an anonymous letter claiming that a professor is sexually harassing
students in class on a daily basis, but the letter provides no clue as to the
identity of the professor or the department in which the conduct is allegedly
taking place. Due to the anonymous source and lack of specificity of the
information, a school would not reasonably be able to investigate and confirm
these allegations. However, in response to the anonymous letter, the school
could submit a letter or article to the newspaper reiterating its policy
against sexual harassment, encouraging persons who believe that they have
been sexually harassed to come forward, and explaining how its grievance
procedures work.

Prevention

A policy specifically prohibiting sexual harassment and separate
grievance procedures for violations of that policy can help ensure that all
students and employees understand the nature of sexual harassment and that the
school will not tolerate it. Indeed, they might even bring conduct of a
sexual nature to the school's attention so that the school can address it
before it becomes sufficiently severe, persistent, or pervasive to create a
hostile environment. Further, training for administrators, teachers, and
staff and age-appropriate classroom information for students can help to
ensure that they understand what types of conduct can cause sexual harassment
and that they know how to respond.

PROMPT AND EQUITABLE GRIEVANCE PROCEDURES

Schools are required by Title IX to adopt and publish a policy against
sex discrimination and grievance procedures providing for prompt and equitable
resolution of complaints of discrimination on the basis of sex81.
Accordingly, regardless of whether harassment occurred, a school violates this
requirement of Title IX if it does not have those procedures and policy in
place82.

A school's sex discrimination grievance procedures must apply to
complaints of sex discrimination in the school's education programs and
activities filed by students against school employees, other students, or
third parties83. Title IX does not require a school to adopt a
policy specifically prohibiting sexual harassment or to provide separate
grievance procedures for sexual harassment complaints. However, its
nondiscrimination policy and grievance procedures for handling discrimination
complaints must provide effective means for preventing and responding to
sexual harassment. Thus, if, because of the lack of a policy or procedure
specifically addressing sexual harassment, students are unaware of what kind
of conduct constitutes sexual harassment or that that conduct is prohibited
sex discrimination, a school's general policy and procedures relating to sex
discrimination complaints will not be considered effective84.

OCR has identified a number of elements in evaluating whether a school's
grievance procedures are prompt and equitable, including whether the
procedures provide for--

notice to students, parents of elementary and secondary
students, and employees of the procedure, including where
complaints may be filed;

application of the procedure to complaints alleging
harassment carried out by employees, other students, or
third parties;

adequate, reliable, and impartial investigation of
complaints, including the opportunity to present witnesses
and other evidence;

designated and reasonably prompt timeframes for the major
stages of the complaint process;

notice to the parties of the outcome of the
complaint85; and

an assurance that the school will take steps to prevent
recurrence of any harassment and to correct its
discriminatory effects on the complainant and others, if
appropriate86.

Many schools also provide an opportunity to appeal the findings or remedy
or both. In addition, because retaliation is prohibited by Title IX, schools
may want to include a provision in their procedures prohibiting retaliation
against any individual who files a complaint or participates in a harassment
inquiry.

Procedures adopted by schools will vary considerably in detail,
specificity, and components, reflecting differences in audiences, school sizes
and administrative structures, State or local legal requirements, and past
experience. In addition, whether complaint resolutions are timely will vary
depending on the complexity of the investigation and the severity and extent
of the harassment. During the investigation it is a good practice for schools
to inform students who have alleged harassment about the status of the
investigation on a periodic basis.

A grievance procedure applicable to sexual harassment complaints cannot
be prompt or equitable unless students know it exists, how it works, and how
to file a complaint. Thus, the procedures should be written in language
appropriate to the age of the school's students, easily understood, and widely
disseminated. Distributing the procedures to administrators, or including
them in the school's administrative or policy manual, may not by itself be an
effective way of providing notice, as these publications are usually not
widely circulated to and understood by all members of the school community.
Many schools ensure adequate notice to students by having copies of the
procedures available at various locations throughout the school or campus;
publishing the procedures as a separate document; including a summary of the
procedures in major publications issued by the school, such as handbooks and
catalogs for students, parents of elementary and secondary students, faculty,
and staff; and identifying individuals who can explain how the procedures
work.

A school must designate at least one employee to coordinate its efforts
to comply with and carry out its Title IX responsibilities87. The
school must notify all of its students and employees of the name, office
address, and telephone number of the employee or employees
designated88. Because it is possible that an employee designated to
handle Title IX complaints may him or herself engage in harassment, a
school may want to designate more than one employee to be responsible for
handling complaints in order to ensure that students have an effective means
of reporting harassment89. While a school may choose to have a
number of employees responsible for Title IX matters, it is also advisable to
give one official responsibility for overall coordination and oversight of all
sexual harassment complaints to ensure consistent practices and standards in
handling complaints. Coordination of recordkeeping (for instance, in a
confidential log maintained by the Title IX coordinator) will also ensure that
the school can and will resolve recurring problems and identify students or
employees who have multiple complaints filed against them90.
Finally, the school must make sure that all designated employees have adequate
training as to what conduct constitutes sexual harassment and are able to
explain how the grievance procedure operates91.

Grievance procedures may include informal mechanisms for resolving sexual
harassment complaints to be used if the parties agree to do so92.
OCR has frequently advised schools, however, that it is not appropriate for a
student who is complaining of harassment to be required to work out the
problem directly with the individual alleged to be harassing him or her, and
certainly not without appropriate involvement by the school (e.g.,
participation by a counselor, trained mediator, or, if appropriate, a teacher
or administrator). In addition, the complainant must be notified of the right
to end the informal process at any time and begin the formal stage of the
complaint process. In some cases, such as alleged sexual assaults, mediation
will not be appropriate even on a voluntary basis. Title IX also permits the
use of a student disciplinary procedure not designed specifically for Title IX
grievances to resolve sex discrimination complaints, as long as the procedure
meets the requirement of affording a complainant a "prompt and equitable"
resolution of the complaint.

In some instances, a complainant may allege harassing conduct that
constitutes both sex discrimination and possible criminal conduct. Police
investigations or reports may be useful in terms of fact-gathering. However,
because legal standards for criminal conduct are different, police
investigations or reports may not be determinative of whether harassment
occurred under Title IX and do not relieve the school of its duty to respond
promptly93. Similarly, schools are cautioned about using the
results of insurance company investigations of sexual harassment allegations.
The purpose of an insurance investigation is to assess liability under the
insurance policy, and the applicable standards may well be different from
those under Title IX. In addition, a school is not relieved of its
responsibility to respond to a sexual harassment complaint filed under its
grievance procedure by the fact that a complaint has been filed with
OCR94.

Finally, a public school's employees may have certain due process rights
under the United States Constitution. The Constitution also guarantees due
process to students in public and State-supported schools who are accused of
certain types of infractions. The rights established under Title IX must be
interpreted consistently with any federally guaranteed rights involved in a
complaint proceeding. In both public and private schools, additional or
separate rights may be created for employees or students by State law,
institutional regulations and policies, such as faculty or student handbooks,
and collective bargaining agreements. Schools should be aware of these rights
and their legal responsibilities to those accused of harassment. Indeed,
procedures that ensure the Title IX rights of the complainant while at the
same time according due process to both parties involved will lead to sound
and supportable decisions. Schools should ensure that steps to accord due
process rights do not restrict or unnecessarily delay the protections provided
by Title IX to the complainant.

FIRST AMENDMENT

In cases of alleged harassment, the protections of the First Amendment
must be considered if issues of speech or expression are
involved95. Free speech rights apply in the classroom (e.g.,
classroom lectures and discussions)96 and in all other education
programs and activities of public schools (e.g., public meetings and speakers
on campus; campus debates, school plays and other cultural
events97; and student newspapers, journals and other
publications98). In addition, First Amendment rights apply to the
speech of students and teachers99.

Title IX is intended to protect students from sex discrimination, not to
regulate the content of speech. OCR recognizes that the offensiveness of
particular expression as perceived by some students, standing alone, is not a
legally sufficient basis to establish a sexually hostile environment under
Title IX100. In order to establish a violation of Title IX, the
harassment must be sufficiently severe, persistent, or pervasive to limit a
student's ability to participate in or benefit from the education program or
to create a hostile or abusive educational environment101.

Moreover, in regulating the conduct of its students and its faculty to
prevent or redress discrimination prohibited by Title IX (e.g., in responding
to harassment that is sufficiently severe, persistent, or pervasive as to
create a hostile environment), a school must formulate, interpret, and apply
its rules so as to protect academic freedom and free speech rights. For
instance, while the First Amendment may prohibit a school from restricting the
right of students to express opinions about one sex that may be considered
derogatory, the school can take steps to denounce those opinions and ensure
that competing views are heard. The age of the students involved and the
location or forum may affect how the school can respond consistent with the
First Amendment102. As an example of the application of free
speech rights to allegations of sexual harassment, consider the followin

g:

Example 1: In a college level creative writing class, a professor's
required reading list includes excerpts from literary classics that contain
descriptions of explicit sexual conduct, including scenes that depict women in
submissive and demeaning roles. The professor also assigns students to write
their own materials, which are read in class. Some of the student essays
contain sexually derogatory themes about women. Several female students
complain to the Dean of Students that the materials and related classroom
discussion have created a sexually hostile environment for women in the class.
What must the school do in response?

Answer: Academic discourse in this example is protected by the First
Amendment even if it is offensive to individuals. Thus, Title IX would not
require the school to discipline the professor or to censor the reading list
or related class discussion.

Example 2: A group of male students repeatedly targets a female student
for harassment during the bus ride home from school, including making explicit
sexual comments about her body, passing around drawings that depict her
engaging in sexual conduct, and, on several occasions, attempting to follow
her home off the bus. The female student and her parents complain to the
principal that the male students' conduct has created a hostile environment
for girls on the bus and that they fear for their daughter's safety. What
must the school do in response?

Answer: Threatening and intimidating actions targeted at a particular
student or group of students, even though they contain elements of speech, are
not protected by the First Amendment. The school must take reasonable and
appropriate actions against the students, including disciplinary action if
necessary, to remedy the hostile environment and prevent future harassment.

FOOTNOTES

This Guidance does not address sexual harassment of employees, although
that conduct may be prohibited by Title IX. If employees bring sexual
harassment claims under Title IX, case law applicable to sexual harassment in
the workplace under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e-2(a), and Equal Employment Opportunity Commission (EEOC) guidelines will
apply. See 28 CFR 42.604 (Procedures for Complaints of Employment
Discrimination Filed Against Recipients of Federal Financial Assistance).

20 U.S.C. 1681 et seq., as amended; 34 CFR 106.1, 106.31(a)(b). In
analyzing sexual harassment claims, the Department also applies, as
appropriate to the educational context, many of the legal principles
applicable to sexual harassment in the workplace developed under Title VII.
See Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75
(1992)(applying Title VII principles in determining that a student was
entitled to protection from sexual harassment by a teacher in school under
Title IX); Kinman v. Omaha Public School Dist., 94 F.3d 463, 469 (8th Cir.
1996) (applying Title VII principles in determining that a student was
entitled to protection from hostile environment sexual harassment by a teacher
in school under Title IX); Doe v. Claiborne County, 1996 WL 734583, *19 (6th
Cir. December 26, 1996) (holding in a case involving allegations of hostile
environment sexual harassment of a student by a teacher that Title VII agency
principles apply to sexual harassment cases brought under Title IX); Murray v.
New York University College of Dentistry, 57 F.3d 243, 249 (2nd Cir.
1995) (while finding notice lacking, court applied Title VII principles in
assuming a Title IX cause of action for sexual harassment of a medical student
by a patient visiting the school clinic); Doe v. Petaluma City School Dist.,
830 F.Supp. 1560, 1571-72 (N.D. Cal. 1993) (applying Title VII principles in
determining that if school had notice of peer sexual harassment
and failed to take appropriate corrective action, school liable under Title
IX), rev'd in part on other grounds, 54 F.3d 1447 (9th Cir. 1995); Kadiki v.
Virginia Commonwealth University, 892 F.Supp. 746, 749 (E.D. Va. 1995) (in
Title IX case involving allegations of both quid pro quo and hostile
environment sexual harassment, court indicated that Title VII standards should
be applied).

In addition, many of the principles applicable to racial harassment under
Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., and Title
VII also apply to sexual harassment under Title IX. Indeed, Title IX was
modeled on Title VI, Cannon v. University of Chicago, 441 U.S. 677, 694
(1979). For information on racial harassment, see the Department's Notice of
Investigative Guidance for Racial Harassment, 59 FR 11448 (1994).

Consistent with Supreme Court decisions, see Franklin, 503 U.S. at 75
(expressly ruling that the sexual harassment of a student by a teacher
violates Title IX), the Department has interpreted Title IX as prohibiting
sexual harassment for over a decade. Kinman, 94 F.3d at 469 (Title IX
prohibits hostile environment sexual harassment of student by teacher).
Moreover, it has been OCR's longstanding practice to apply Title IX to peer
harassment. See also Bosley v. Kearney R-1 School Dist., 904 F.Supp. 1006,
1023 (W.D. Mo. 1995); Doe v. Petaluma City School Dist., Plaintiff's Motion
for Reconsideration Granted, 1996 WL 432298 (N.D. Cal. July 22, 1996)
(reaffirming Title IX liability for peer harassment if the school knows of the
hostile environment but fails to take remedial action); Burrow v. Postville
Community School District, 929 F.Supp. 1193, 1205 (N.D. Iowa 1996)
(student may bring Title IX cause of action against a school for its knowing
failure to take appropriate remedial action in response to the hostile
environment created by students at the school); Oona R.-S. v. Santa Rosa
City Schools, 890 F.Supp. 1452 (N.D. Cal. 1995); Davis v. Monroe County
Bd. of Education, 74 F.3d 1186, 1193 (11th Cir. 1996) (as Title VII is
violated if a sexually hostile working environment is created by co-workers
and tolerated by the employer, Title IX is violated if a sexually hostile
educational environment is created by a fellow student or students and the
supervising authorities knowingly failed to act to eliminate the harassment),
vacated, reh'g granted, 91 F.3d 1418 (11th Cir. 1996); cf. Murray, 57 F.3d at
249 (while court finds no notice to school, assumes a Title IX cause of action
for sexual harassment of a medical student by a patient visiting school
clinic). But see note 27. Of course, OCR has interpreted Title IX as
prohibiting quid pro quo harassment of students for many years. See Alexander
v. Yale University, 459 F.Supp. 1, 4 (D.Conn. 1977), aff'd, 631 F.2d 178 (2nd
Cir. 1980).

The term "employee" refers to employees and agents of a school. This
includes persons with whom the school contracts to provide services for the
school. See Brown v. Hot, Sexy, and Safer Productions, Inc., 68 F.3d 525
(1st Cir. 1995) (Title IX sexual harassment claim brought for school's role in
permitting contract consultant hired by it to create allegedly hostile
environment).

In addition, while the standards applicable to peer sexual harassment are
generally applicable to claims of student-on-student harassment, schools will
be liable for the sexual harassment of one student by another student under
the standards applicable to employee-on-student harassment if a student
engages in sexual harassment as an agent or employee of a school. For
instance, a school would be liable under the standards applicable to quid pro
quo harassment if a student teaching assistant, who has been given the
authority to assign grades, requires a student in his or her class to submit
to sexual advances in order to obtain a certain grade in the class.

Alexander, 459 F.Supp. at 4 (a claim that academic advancement was
conditioned upon submission to sexual demands constitutes a claim of sex
discrimination in education); Kadiki, 892 F.Supp. at 752 (reexamination in a
course conditioned on college student's agreeing to be spanked should she not
attain a certain grade may constitute quid pro quo harassment); see also
Karibian v. Columbia University, 14 F.3d 773, 777-79 (2nd Cir. 1994) (Title
VII case).

20 U.S.C. 1687 (codification of Title IX portion of the Civil Rights
Restoration Act of 1987).

10. See also Shoreline School Dist., OCR Case No. 10-92-1002 (a teacher's
patting student on arm, shoulder, and back, and restraining the student when
he was out of control, not conduct of a sexual nature); Dartmouth Public
Schools, OCR Case No. 01-90-1058 (same as to contact between high school
coach and students); San Francisco State University, OCR Case No.
09-94-2038 (same as to faculty advisor placing her arm around graduate
student's shoulder in posing for a picture); Analy Union High School Dist.,
OCR Case No. 09-92-1249 (same as to drama instructor who put his arms
around both male and female students who confided in him.)

Cf. John Does 1 v. Covington County School Bd., 884 F.Supp. 462,
464-65 (M.D. Ala. 1995) (male students alleging that teacher sexually
harassed and abused them stated cause of action under Title IX).

Title IX and the regulations implementing it prohibit discrimination "on
the basis of sex;" they do not restrict sexual harassment to those
circumstances in which the harasser only harasses members of the opposite
sex in incidents involving either quid pro quo or hostile environment sexual
harassment. See 34 CFR 106.31. In order for hostile environment
harassment to be actionable under Title IX, it must create a hostile or
abusive environment. This can occur when a student or employee harasses a
member of the same sex. See Kinman, 94 F.3d at 468 (female student's alleging
sexual harassment by female teacher sufficient to raise a claim under Title
IX); Doe v. Petaluma, 830 F.Supp. at 1564-65, 1575 (female junior high
school student alleging sexual harassment by other students, including both
boys and girls, sufficient to raise claim under Title IX); John Does 1, 884
F.Supp. at 465 (same as to male students' allegations of sexual harassment
and abuse by male teacher.) It can also occur in certain situations if the
harassment is directed at students of both sexes. Chiapuzo v. BLT Operating
Co., 826 F.Supp. 1334 (D. Wyo. 1993) (court found that such harassment
could violate Title VII).

In many circumstances, harassing conduct will be on the basis of sex
because the student would not have been subjected to it at all had he or she
been a member of the opposite sex; e.g., if a female student is repeatedly
propositioned by a male student or employee (or, for that matter, if a male
student is repeatedly propositioned by a male student or employee). In other
circumstances, harassing conduct will be on the basis of sex if the student
would not have been affected by it in the same way or to the same extent had
he or she been a member of the opposite sex; e.g., pornography and sexually
explicit jokes in a mostly male shop class are likely to affect the few girls
in the class more than it will most of the boys.

In yet other circumstances, the conduct will be on the basis of sex in
that the student's sex was a factor in or affected the nature of the
harasser'sconduct or both. Thus, in Chiapuzo, a supervisor made demeaning
remarks to both partners of a married couple working for him, e.g., as to
sexual acts he wanted to engage in with the wife and how he would be a better
lover than the husband. In both cases, according to the court, the remarks
were gender-driven in that they were made with an intent to demean each member
of the couple because of his or her respective sex. See also Steiner v.
Showboat Operating Co., 25 F.3d 1459, 1463-64 (9th Cir. 1994), cert. denied,
115 S.Ct. 733 (1995) (Title VII case).

Nashoba Regional High School, OCR Case No. 01-92-1397. In Conejo
Valley School Dist., OCR Case No. 09-93-1305, female students allegedly
taunted another female student about engaging in sexual activity; OCR found
that the alleged comments were sexually explicit and, if true, would be
sufficiently severe, persistent, and pervasive to create a hostile
environment.

See Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) (holding that a
gay student could maintain claims alleging discrimination based on both
gender and sexual orientation under the Equal Protection Clause of the United
States Constitution in case in which school district officials allegedly
failed to
protect the student to the same extent that other students were protected from
harassment and harm by other students due to the student's gender and sexual
orientation).

See Harris, 114 S.Ct. at 370-371; Andrews v. City of Philadelphia, 895
F.2d 1469, 1485-86 (3rd Cir. 1990) (Title VII case; court directed trial court
to consider sexual conduct as well as theft of female employees' files and
work, destruction of property, and anonymous phone calls in determining if
there had been sex discrimination); see also Hall v. Gus Construction Co.,
842 F.2d 1010, 1014 (8th Cir. 1988) (Title VII case); Hicks, 833 F.2d at
1415; Eden Prairie Schools, Dist. #272, OCR Case No. 05-92- 1174 (the boys
made lewd comments about male anatomy and tormented the girls by
pretending to stab them with rubber knives; while the stabbing was not sexual
conduct, it was directed at them because of their sex, i.e., because they were
girls.

The Supreme Court has ruled that agency principles apply in determining
an employer's liability under Title VII for the harassment of its employees by
supervisors. See Vinson, 477 U.S. at 72. These principles would govern in
Title IX cases involving employees who are harassed by their supervisors.
See 28 CFR 42.604 (regulations providing for handling employment
discrimination complaints by Federal agencies; requiring agencies to apply
Title VII law if applicable). These same principles should govern the
liability
of educational institutions under Title IX for the harassment of students by
teachers and other school employees in positions of authority. See Franklin,
503 U.S. at 75.

The Supreme Court in Vinson did not alter the standard developed in the
lower Federal courts whereby an institution is absolutely liable for quid pro
quo sexual harassment whether or not it knew, should have known, or
approved of the harassment at issue. 477 U.S. at 70-71; see also Lipsett,
864 F.2d at 901; EEOC Notice N-915-050, March 1990, Policy Guidance on
Current Issues of Sexual Harassment, at p. 21. This standard applies in the
school context as well. Kadiki, 892 F.Supp. at 752 (for the purposes of quid
pro quo harassment of a student, professor is in similar position as workplace
supervisor).

Restatement (Second) Agency §219(2)(d); Martin, 48 F.3d at 1352
(finding an employer liable under Title VII for sexual harassment of an
employee in case in which the Manager used his apparent authority to
commit the harassment; the Manager was delegated full authority to hire, fire,
promote, and discipline employees and used the authority to accomplish the
harassment; and company policy required employees to report harassment to
the Manager with no other grievance process made available to them).

See Restatement (Second) of Agency §219(2)(d); EEOC Policy Guidance
on Current Issues of Sexual Harassment at p. 28; Karibian, 14 F.3d at 780;
Hirschfeld v. New Mexico Corrections Dept., 916 F.2d 572, 579 (10th Cir.
1990) (Title VII case); Martin, 48 F.3d at 1352. But see Rosa H. v. San
Elizario Ind. School Dist., 1997 U.S. App. LEXIS 2780 (5th Cir. Feb. 17,
1997). In San Elizario the Fifth Circuit reversed a jury finding that a
school district was liable under Title IX for a hostile environment created by
the school's male karate instructor, who repeatedly initiated sexual
intercourse with a fifteen year old female karate student. The court held,
contrary to OCR policy, that a school could not be found liable under Title IX
pursuant to agency principles.

However, language in this and previous decisions indicates that Title IX
law is evolving in the Fifth Circuit. When OCR investigates complaints
involving schools in the Fifth Circuit (Texas, Louisiana, and Mississippi), it
will in each case determine and follow the current applicable law. In light
of
the evolving case law in the Fifth Circuit, adhering to the standards in the
Guidance may be the best way for schools in these States to ensure
compliance with the requirements of Title IX. School personnel should also
consider whether State, local, or other Federal authority affect their
obligations in these areas.

Karibian, 14 F.3d at 780 (employer would be liable for hostile
environment harassment in case in which allegations were that a supervisor
coerced employee into a sexual relationship by, among other things, telling
her she "'owed him' for all he was doing for her as her supervisor"); Sparks
v.
Pilot Freight Carriers, Inc., 830 F.2d 1554, 1558-60 (11th Cir. 1987) (Title
VII case holding employer liable for sexually hostile environment created by
supervisor who repeatedly reminded the harassed employee that he could fire
her if she did not comply with his sexual advances).

Cf. Karibian, 14 F.3d at 780.

Id.

The overwhelming majority of courts that have considered the issue of
sexually hostile environments caused by peers have indicated that schools
may be liable under Title IX for their knowing failure to take appropriate
actions to remedy the hostile environment. See note 7 and peer hostile
environment cases cited in note 3. However, one Federal Circuit Court of
Appeals decision, Rowinsky v. Bryan Independent School Dist., 80 F.3d 1006
(5th Cir. 1996), cert. denied, 117 S.Ct. 165 (1996), has held to the contrary.

In that case, over a strong dissent, the court rejected the authority of other
Federal courts and OCR's longstanding construction of Title IX and held that
a school district is not liable under Title IX for peer harassment unless "the
school district itself directly discriminated based on sex," i.e., the school
responded differently to sexual harassment or similar claims of girls versus
boys. For cases specifically rejecting the Rowinsky interpretation, see e.g.,
Doe v. Petaluma, Plaintiff's Motion for Reconsideration Granted, 1996 WL
432298 *6 (N.D. Cal. 1996); Burrow v. Postville Community School Dist.,
929 F.Supp. at 1193.

OCR believes that the Rowinsky decision misinterprets Title IX. As
explained in this Guidance, Title IX does not make a school responsible for
the actions of the harassing student, but rather for its own discrimination in
failing to take immediate and appropriate steps to remedy the hostile
environment once a school official knows about it. If a student is sexually
harassed by a fellow student, and a school official knows about it, but does
not stop it, the school is permitting an atmosphere of sexual discrimination
to permeate the educational program. The school is liable for its own action,
or lack of action, in response to this discrimination. Notably, Title VII
cases that hold that employers are responsible for remedying hostile
environment harassment of one worker by a co-worker apply this same standard.
See, e.g., Ellison v. Brady, 924 F.2d at 881-82; Hall v. Gus Construction Co.,
842 F.2d 1010 (8th Cir. 1988); Hunter v. Allis-Chalmers Corp., 797 F.2d 1417
(7th Cir. 1986); Snell v. Suffolk, 782 F.2d 1094 (2nd Cir. 1986); Robinson v.
Jacksonville Shipyards, 760 F.Supp. 1486 (M.D. Fla. 1991).

Language in subsequent decisions indicates that Title IX law is evolving
in the Fifth Circuit. When OCR investigates complaints involving schools in
States in the Fifth Circuit (Texas, Louisiana, and Mississippi), it will in
each case determine and follow the current applicable law. However, the
existence of Fifth Circuit decisions that are inconsistent with OCR policy
does not prohibit schools in these States from following the Guidance. In
order to ensure students a safe and nondiscriminatory educational environment,
the better practice is for these schools to follow the Guidance. Thus,
schools should take prompt corrective action to address peer harassment of
which they knew or should have known. Indeed, following the Guidance may be
the safest way for schools in these States to ensure compliance with the
requirements of Title IX.

For example, if athletes from a visiting team harass the home school's
students, the home school may not be able to discipline the athletes.
However, it could encourage the other school to take appropriate action to
prevent further incidents; if necessary, the home school may choose not to
invite the other school back. Cf. Danna v. New York Telephone Co., 752
F.Supp. 594, 611 (S.D.N.Y. 1990) (telephone company in violation of Title
VII for not taking sufficient action to protect its own employee from sexually
explicit graffiti at airport where she was assigned to work, e.g., contacting
airport management to see what remedial measures could be taken).

34 CFR 106.8(b) and 106.9.

See Racial Harassment Investigative Guidance, 59 FR 11450; Murray,
57 F.3d at 249 (an employer is liable for the harassment of co-workers if the
employer "either provided no reasonable avenue for complaint or knew of the
harassment but did nothing about it".

EEOC Policy Guidance at p. 25 ("* * * in the absence of a strong,
widely disseminated, and consistently enforced employer policy against
sexual harassment, and an effective complaint procedure, employees could
reasonably believe that a harassing supervisor's actions will be ignored,
tolerated, or even condoned by upper management.")

CFR 106.8(b).

If OCR finds a violation of Title IX, it will seek to obtain an agreement
with the school to voluntarily correct the violation. The agreement will set
out the specific steps the school will take and provide for monitoring by OCR
to ensure that the school complies with the agreement. Schools should note
that the Supreme Court has held that monetary damages are available as a
remedy in private lawsuits brought to redress violations of Title IX.
Franklin, 503 U.S. at 76. Of course, a school's immediate and appropriate
remedial actions are relevant in determining the nature and extent of the
damages suffered by a plaintiff.

. Henson, 682 F.2d at 903 (Title VII case).

[T]he fact that sex-related conduct was "voluntary," in the sense that
the complainant was not forced to participate against her will, is not a
defense to a sexual harassment suit brought under Title VII * * *. The
correct inquiry is whether [the subject of the harassment] by her conduct
indicated that the alleged sexual advances were unwelcome, not whether her
actual participation in sexual intercourse was voluntary. Vinson, 477 U.S. at
68.

Lipsett, 864 F.2d at 898 (while, in some instances, a person may have
responsibility for telling the harasser directly that the conduct is
unwelcome, in other cases a "consistent failure to respond to suggestive
comments or gestures may be sufficient ***."); Danna, 752 F.Supp. at 612
(despite female employee's own foul language and participation in graffiti
writing, her complaints to management indicated that the harassment was not
welcome); see also Carr v. Allison Gas Turbine Div., GMC, 32 F.3d 1007, 1011
(7th Cir. 1994) (Title VII case; cursing and dirty jokes by female employee
did not show that she welcomed the sexual harassment, given her frequent
complaints about it: "Even if ... [the employee's] testimony that she talked
and acted as she did [only] in an effort to be 'one of the boys' is ...
discounted, her words and conduct cannot be compared to those of the men
and used to justify their conduct.... The asymmetry of positions must be
considered. She was one woman; they were many men. Her use of [vulgar]
terms ... could not be deeply threatening.").

Reed v. Shepard, 939 F.2d 484, 486-87, 491-92 (7th Cir. 1991) (no
harassment found under Title VII in case in which female employee not only
tolerated, but also participated in and instigated the suggestive joking
activities about which she was now complaining); Weinsheimer v. Rockwell
Int'l Corp., 794 F.Supp. 1559, 1563-64 (M.D. Fla. 1990) (same, in case in
which general shop banter was full of vulgarity and sexual innuendo by men
and women alike, and plaintiff contributed her share to this atmosphere).
However, even if a student participates in the sexual banter, OCR may in
certain circumstances find that the conduct was nevertheless unwelcome if,
for example, a teacher took an active role in the sexual banter and a student
reasonably perceived that the teacher expected him or her to participate.

The school bears the burden of rebutting the presumption.

Of course, nothing in Title IX would prohibit a school from
implementing policies prohibiting sexual conduct or sexual relationships
between students and adult employees.
42. See note 41.

In Harris, the Supreme Court explained the requirement for considering
the "subjective perspective" when determining the existence of a hostile
environment. The Court stated: "...if the victim does not subjectively
perceive the environment to be abusive, the conduct has not actually altered
the conditions of the victim's employment, and there is no Title VII
violation." 114 S.Ct. at 370.

The Supreme Court used a "reasonable person" standard in Harris, 114
S.Ct. at 370-71 to determine whether sexual conduct constituted harassment.
This standard has been applied under Title VII to take into account the sex of
the subject of the harassment, see, e.g., Ellison, 924 F.2d at 878-79
(applying a "reasonable women" standard to sexual harassment), and has been
adapted to sexual harassment in education, Davis, 74 F.3d at 1126 (relying on
Harris to adopt an objective, reasonable person standard), vacated, reh'g
granted; Patricia H. v. Berkeley Unified School Dist., 830 F. Supp. 1288,
1296 (N.D. Cal. 1993) (adopting a "reasonable victim" standard and referring
to OCR's use of it); Racial Harassment Guidance, 59 FR 11452 (the standard
must take into account the characteristics and circumstances of victims on a
case-by-case basis, particularly the victim's race and age).

See e.g., Doe v Petaluma, 830 F. Supp at 1566 (student so upset about
harassment by other students that she was forced to transfer several times,
including finally to a private school); Modesto City Schools, OCR Case No.
09-93-1391 (evidence showed that one girl's grades dropped while the
harassment was occurring); Weaverville Elementary School, OCR Case No.
09-91-1116 (students left school due to the harassment). Compare with
College of Alameda, OCR Case No. 09-90-2104 (student not in instructor's
class and no evidence of any effect on student's educational benefits or
services, so no hostile environment).

Doe v. Petaluma, 830 F. Supp. at 1566.

See Harris, 114 S.Ct. at 371, in which the Court held that tangible harm
is not required. In determining whether harm is sufficient, several factors
are
to be considered, including frequency, severity, whether the conduct was
threatening or humiliating versus a mere offensive utterance, and whether it
unreasonably interfered with work performance. No single factor is required;
similarly, psychological harm, while relevant, is not required.

See Modesto City Schools, OCR Case No. 09-93-1391 (evidence showed
that several girls were afraid to go to school because of the harassment).

The U.S. Equal Employment Opportunity Commission (EEOC) has
stated: "The Commission will presume that the unwelcome, intentional
touching of [an employee's] intimate body areas is sufficiently offensive to
alter the conditions of her working environment and constitute a violation of
Title VII. More so than in the case of verbal advances or remarks, a single
unwelcome physical advance can seriously poison the victim's working
environment." EEOC Policy Guidance on Current Issues of Sexual
Harassment, p. 17. See also Barrett v. Omaha National Bank, 584 F. Supp.
22, 30 (D. Neb. 1983), aff'd, 726 F.2d 424 (8th Cir. 1984) (hostile
environment created under Title VII by isolated events, i.e., occurring while
traveling to and during a two-day conference, including the co-worker's
talking to plaintiff about sexual activities and touching her in offensive
manner while they were inside a vehicle from which she could not escape).

See also Ursuline College, OCR Case No. 05-91-2068 (A single incident
of comments on a male student's muscles arguably not sexual; however,
assuming they were, not severe enough to create a hostile environment).

Patricia H., 830 F.Supp. at 1297 ("grave disparity in age and power"
between teacher and student contributed to the creation of a hostile
environment); Summerfield Schools, OCR Case No. 15-92- 1929 ("impact of
the ... remarks was heightened by the fact that the coach is an adult in a
position of authority"); cf. Doe v. Taylor I.S.D., 15 F.3d 443 (5th Cir.
1994), cert. denied, 115 S.Ct. 70 (1994) (Sec. 1983 case; in finding that a
sexual relationship between a high school teacher and a student was unlawful,
court considered the influence that the teacher had over the student by virtue
of his position of authority).

See also Barrett, 584 F. Supp. at 24 (harassment occurring in a car from
which the plaintiff could not escape was deemed particularly severe).

See also Hall, 842 F.2d at 1015 (incidents of sexual harassment directed
at other employees); Hicks, 833 F.2d at 1415-16 (same). Cf. Midwest
City-Del City Public Schools, OCR Case No. 06- 92-1012 (finding of racially
hostile environment based in part on several racial incidents at school
shortly before incidents in complaint, a number of which involved the same
student involved in the complaint).

See note 17. In addition, incidents of racial or national origin
harassment directed at a particular individual may also be aggregated with
incidents of sexual or gender harassment directed at that individual in
determining the existence of a hostile environment. Hicks, 833 F.2d at 1416;
Jefferies v. Harris Community Action Ass'n, 615 F.2d 1025, 1032 (5th Cir.
1980) (Title VII case).

In addition, even if there is no notice, schools may be liable for sexual
harassment. See previous discussions of liability in situations involving
quid pro quo harassment and hostile environment sexual harassment by employees
in situations in which the employee acted with apparent authority or was
aided in carrying out the harassment of students by his or her position of
authority with the school.

But see Rosa H. v. San Elizario Indep. School Dist., 1997 U.S. App.
LEXIS 2780 (5th Cir. Feb. 17, 1997) and note 23. In San Elizario, the Fifth
Circuit held, among other things, that liability for hostile environment
harassment cannot attach where the school has only constructive notice of the
harassment. See note 23.

Whether an employee is an agent or responsible school employee, or
whether it would be reasonable for a student to believe the employee is, even
if the employee is not, will vary depending on factors such as the authority
actually given to the employee and the age of the student.

With respect to the notice provisions applicable to schools under Title
IX,
one Federal Circuit Court of Appeals decision, Canutillo Indep. School Dist.
v. Leija, 101 F.3d 393, 398-400 (5th Cir. 1996), has held, contrary to OCR
policy, that a school district was not liable in a case in which one of its
teachers sexually molested a second grade student, because the student and
her mother only reported the harassment to her homeroom teacher.
Notwithstanding that a school handbook instructed students and parents to
report complaints to the child's primary or homeroom teacher, the court held
that notice must be given to "someone with authority to take remedial
action." See also Rosa H. v. San Elizario Indep. School Dist., 1997 U.S.
App. LEXIS 2780 (5th Cir. Feb. 17, 1997), and notes 23 and 64. In San
Elizario, the Fifth Circuit held, among other things, that although the
fifteen year old student, whose karate instructor had repeatedly initiated
sexual intercourse, "was subject to discrimination on the basis of sex," a
school district is only liable if an employee who has been invested by the
school board with supervisory power over the offending employee actually knew
of the abuse, had the power to end the abuse, and failed to do so.

Based on these and other decisions, Title IX law is evolving in the Fifth
Circuit. When OCR investigates complaints involving schools in States in
the Fifth Circuit (Texas, Louisiana, and Mississippi), it will in each case
determine and follow the current applicable law. However, the existence of
Fifth Circuit decisions that are inconsistent with OCR policy does not
prohibit schools in these States from following the Guidance. In order to
ensure students a safe and nondiscriminatory educational environment, it is
the better practice for these schools to follow the Guidance. For example,
the better practice is for schools to ensure that teachers and other personnel
recognize and report sexual harassment of students to the appropriate school
staff so that schools can take prompt corrective action and ensure a safe
educational environment. In addition, the Guidance makes clear that
providing students with several avenues to report sexual harassment is a very
helpful means for addressing and preventing sexually harassing conduct in the
first place. Schools in States in the Fifth Circuit should also consider
whether State, local or other Federal laws may affect their responsibilities
in this regard.

Racial Harassment Guidance, 59 FR 11450 (discussing how a school
may receive notice).

Cf. Katz, 709 F.2d at 256 (the employer "should have been aware of
the...problem both because of its pervasive character and because of Katz'
specific complaints..."); Smolsky v. Consolidated Rail Corp., 780 F. Supp.
283, 293 (E.D. Pa. 1991), reconsideration denied, 785 F. Supp. 71 (E.D. Pa.
1992) ("where the harassment is apparent to all others in the work place,
supervisors and coworkers, this may be sufficient to put the employer on
notice of the sexual harassment" under Title VII); Jensen v. Eveleth Taconite
Co., 824 F. Supp. 847, 887 (D. Minn. 1993) (Title VII case; "[s]exual
harassment...was so pervasive that an inference of knowledge arises....The
acts of sexual harassment detailed herein were too common and continuous to
have escaped Eveleth Mines had its management been reasonably alert");
Cummings v. Walsh Construction Co., 561 F. Supp. 872, 878 (S.D. Ga.
1983) ("...allegations not only of the [employee] registering her complaints
with her foreman...but also that sexual harassment was so widespread that
defendant had constructive notice of it" under Title VII); but see Murray, 57
F.3d at 250-51 (that other students knew of the conduct was not enough to
charge the school with notice, particularly in case in which these students
may not have been aware that the conduct was offensive or abusive).

Schools have an obligation to ensure that the educational environment is
free of discrimination and cannot fulfill this obligation without determining
if sexual harassment complaints have merit.

In some situations, for example, if a playground supervisor observes a
young student repeatedly engaging in conduct toward other students that is
clearly unacceptable under the school's policies, it may be appropriate for
the school to intervene without contacting the other students. It may still
be necessary for the school to talk with the students (and parents of
elementary and secondary students) afterwards, e.g., to determine the extent
of the harassment and how it affected them.

Waltman v. Int'l Paper Co., 875 F.2d at 479 (appropriateness of
employer's remedial action under Title VII will depend on the severity and
persistence of the harassment and the effectiveness of any initial remedial
steps); Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309-10 (5th
Cir. 1987) (Title VII case; employer arranged for victim to no longer work
with alleged harasser).

Intlekofer v. Turnage, 973 F.2d 773 (9th Cir. 1992) (Title VII case)
(holding that the employer's response was insufficient and that more severe
disciplinary action was necessary in situations in which counseling,
separating the parties, and warnings of possible discipline were ineffective
in ending the harassing behavior).

Offering assistance in changing living arrangements is one of the actions
required of colleges and universities by the Campus Security Act in cases of
rape and sexual assault. See 20 U.S.C. 1092(f).

Even if the harassment stops without the school's involvement, the
school may still need to take steps to prevent or deter any future harassment
-- to inform the school community that harassment will not be tolerated.
Fuller v. City of Oakland, 47 F.3d 1522, 1528-29 (9th Cir. 1995).

34 CFR 106.8(b) and 106.71, incorporating by reference 34 CFR
100.7(e). Title IX prohibits intimidation, threats, coercion, or
discrimination against any individual for the purpose of interfering with any
right or privilege secured by Title IX.

Tacoma School Dist. No. 10, OCR Case No. 10-94-1079 (due to the
large number of students harassed by an employee, the extended period of
time over which the harassment occurred, and the failure of several of the
students to report the harassment, school committed as part of corrective
action plan to providing training for students); Los Medanos College, OCR
Case No. 09-84-2092 (as part of corrective action plan, school committed to
providing sexual harassment seminar for campus employees); Sacramento
City Unified School Dist., OCR Case No. 09-83-1063 (same as to workshops
for management and administrative personnel, in-service training for
non-management personnel).

In addition, if information about the incident is contained in an
"education record" of the student alleging the harassment, as defined in the
Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g, the
school should consider whether FERPA would prohibit the school from
disclosing information without the student's consent. Id. In evaluating
whether FERPA would limit disclosure, the Department does not interpret
FERPA to override any federally protected due process rights of a school
employee accused of harassment.

34 CFR 106.8(b). This requirement has been part of the Title IX
regulations since their inception in 1975. Thus, schools have been required
to have these procedures in place since that time. At the elementary and
secondary level, this responsibility generally lies with the school district.
At the postsecondary level, there may be a procedure for a particular campus
or college, or for an entire university system.

Fenton Community High School Dist. # 100, OCR Case 05-92-1104.

While a school is required to have a grievance procedure under which
complaints of sex discrimination (including sexual harassment) can be filed,
the same procedure may also be used to address other forms of
discrimination.

See Vinson, 477 U.S. at 72-73.

It is the Department's current position under the Family Educational
Rights and Privacy Act (FERPA) that a school cannot release information to a
complainant regarding disciplinary action imposed on a student found guilty
of harassment if that information is contained in a student's education record
unless--(1) the information directly relates to the complainant (e.g., an
order requiring the student harasser not to have contact with the
complainant); or (2) the harassment involves a crime of violence or a sex
offense in a postsecondary institution. See note 80. If the alleged harasser
is a teacher, administrator, or other non-student employee, FERPA would not
limit the school's ability to inform the complainant of any disciplinary
action taken.

The section in the Guidance on "Recipient's Response" provides
examples of reasonable and appropriate corrective action.

34 CFR 106.8(a).

Id.

See Vinson, 477 U.S. at 72-73.

University of California, Santa Cruz, OCR Case No. 09-93-2141;
Sonoma State University, OCR Case No. 09-93-2131. This is true for formal
as well as informal complaints. See University of Maine at Machias, OCR
Case No. 01-94-6001 (school's new procedures not found in violation of Title
IX in part because they require written records for informal as well as formal
resolutions). These records need not be kept in a student's or employee's
individual file, but instead may be kept in a central confidential location.

For example, in Cape Cod Community College, OCR Case No. 01-
93-2047, the College was found to have violated Title IX in part because the
person identified by the school as the Title IX coordinator was unfamiliar
with Title IX, had no training, and did not even realize he was the
coordinator.

Indeed, in University of Maine at Machias, OCR Case No. 01-94- 6001,
OCR found the school's procedures to be inadequate because only formal
complaints were investigated. While a school isn't required to have an
established procedure for resolving informal complaints, they nevertheless
must be addressed in some way. However, if there are indications that the
same individual may be harassing others, then it may not be appropriate to
resolve an informal complaint without taking steps to address the entire
situation.

Academy School Dist. No. 20, OCR Case No. 08-93-1023 (school's
response determined to be insufficient in case in which it stopped its
investigation after complaint filed with police); Mills Public School Dist.,
OCR Case No. 01-93-1123 (not sufficient for school to wait until end of
police investigation).

The First Amendment applies to entities and individuals that are State
actors. The receipt of Federal funds by private schools does not directly
subject those schools to the U.S. Constitution. See Rendell-Baker v. Kohn,
457 U.S. 830, 840 (1982). However, all actions taken by OCR must comport
with First Amendment principles, even in cases involving private schools that
are not directly subject to the First Amendment.

See, e.g., George Mason University, OCR Case No. 03-94-2086 (law
professor's use of a racially derogatory word, as part of an instructional
hypothetical regarding verbal torts, did not constitute racial harassment);
Portland School Dist. 1J, OCR Case No. 10-94-1117 (reading teacher's choice
to substitute a less offensive term for a racial slur when reading an
historical novel aloud in class constituted an academic decision on
presentation of curriculum, not racial harassment).

See Florida Agricultural and Mechanical University, OCR Case No.
04-92-2054 (no discrimination in case in which campus newspaper, which
welcomed individual opinions of all sorts, printed article expressing one
student's viewpoint on white students on campus).

Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506
(1969) (neither students nor teachers shed their constitutional rights to
freedom of expression at the schoolhouse gates); Cf. Cohen v. San
Bernardino Valley College, (college professor could not be punished for his
longstanding teaching methods, which included discussion of controversial
subjects such as obscenity and consensual sex with children, under an
unconstitutionally vague sexual harassment policy); George Mason
University, OCR Case No. 03-94-2086 (law professor's use of a racially
derogatory word, as part of an instructional hypothetical regarding verbal
torts, did not constitute racial harassment).

See, e.g., University of Illinois, OCR Case No. 05-94-2104 (fact that
university's use of Native American symbols was offensive to some Native
American students and employees was not dispositive, in and of itself, in
assessing a racially hostile environment claim under Title VI).

See Vinson, 477 U.S. at 67 (the "mere utterance of an ethnic or racial
epithet which engenders offensive feelings in an employee" would not affect
the conditions of employment to a sufficient degree to violate Title VII),
quoting Henson, 682 F.2d at 904; cf. R.A.V. v. City of St. Paul, 505 U.S.
377, 389 (1992) (citing with approval EEOC's sexual harassment guidelines).

Compare Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 685
(1986) (Court upheld discipline of high school student for making lewd
speech to student assembly, noting that "[t]he undoubted freedom to advocate
unpopular and controversial issues in schools and classrooms must be
balanced against the society's countervailing interest in teaching students
the boundaries of socially appropriate behavior."), with Iota XI 993 F.2d 386
(holding that, notwithstanding a university's mission to create a culturally
diverse learning environment and its substantial interest in maintaining a
campus free of discrimination, it could not punish students who engaged in
an offensive skit with racist and sexist overtones).